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Consideration of adjudicator's jurisdiction

In the recent case of Aedifice Partnership v Shah [2010] EWHC 2106, Mr Justice Akenhead in the Technology and Construction Court (TCC), had to decide whether a party had adequately reserved its right to object to an adjudicator's jurisdiction.

A dispute had arisen as to the claimant project manager's entitlement to fees and the claimant referred the dispute to adjudication. The employer respondent, maintaining he was not liable to the claimant, contended that the adjudicator had no jurisdiction and served a response to the adjudication referral inviting the adjudicator to decline jurisdiction. The adjudicator found that unless he was persuaded that he lacked jurisdiction (which he was not) then he would continue with the reference and found in favour of the claimant. The claimant sought to enforce the adjudicator's decision.

Considering the existing case law (in particular Pilon Limited v Breyer Group plc [2010] EWHC 837 (TCC)), Akenhead J found that an adjudicator's view on jurisdiction was not determinative unless the parties had agreed that they would be bound by it. If there was a "respectable" case that the adjudicator had reached an erroneous conclusion as to jurisdiction then enforcement of the decision would be refused. Akenhead J considered that agreement between the parties as to jurisdiction could not be implied in circumstances where the party objecting to jurisdiction had clearly reserved its position. In this regard, wording such as "I fully reserve my position as to jurisdiction" or "I am only participating under protest" would usually suffice. In this case, the respondent stated that "I submit that you have no jurisdiction to deal with this matter and I decline to take any further part". In the circumstances the defendant had neither agreed that the adjudicator's determination of jurisdiction would be binding nor had waived its right to object.

In light of the facts, the result of this case is unsurprising. Nonetheless, it provides a useful illustration as to the basis upon which an adjudicator's determination of jurisdiction will or will not be binding.